Bench Memos

NRO’s home for judicial news and analysis.

Church and State--Again


Speaking of Fr. Neuhaus as I was below, I learn from his First Things blog that the New York Court of Appeals (the high court of that state) last week upheld a statute, challenged on First Amendment “free exercise of religion” grounds, that requires institutions such as Catholic hospitals to cover contraceptive services in the health insurance they must offer their employees.  (The decision in Catholic Charities v. Serio can be found here.)  Two quick thoughts, as the losing plaintiffs plan to petition for review of the decision by the U.S. Supreme Court.  First, if we still remembered that the First Amendment properly applies to the actions only of the federal government, and that the Fourteenth Amendment changed nothing about that fact (a century of myth-making to the contrary notwithstanding), we would have to face the fact that this intrusion of the state on the practices of church-related institutions is a problem for New York citizens and the state constitution, not for the nation’s highest court.  Second, even if we take it as given that this is a “federal case,” it is not at all clear that an inhibition of the “free exercise of religion” has occurred that the Supreme Court may rightfully overturn.  New York’s law exempts what it calls “religious employers,” clearly including churches themselves and any other workplaces where the propagation of “religious tenets” is the business at hand.  Pace Fr. Neuhaus, a reasonable case can be made that the state can reach the employment practices of Catholic Charities’ varied enterprises in health care, housing, immigrant services, and shelters.  This is not a defense of the law’s requirement as to contraception, or even of where it draws the line between what might be called core and peripheral activities undertaken by various organs of the church.  It is a defense of the state’s authoritative power to draw such a line and to brook no self-exemptions insisted upon in courts of law.

Tags: Franck


Sign up for free NRO e-mails today:

Subscribe to National Review